Callinan’s background

... asked to stand down in Australia because of perceived bias towards the Government’s position

Mr Ian Callinan, QC was a former High Court judge from Australia. In 2015 he was appointed to review David Bain’s compensation claim after the original report by Canadian judge, Ian Binnie, was rejected by Judith Collins who was Minister of Justice at the time. Callinan appears to have been hand-picked by the New Zealand Government because of his conservative views – both legally and politically.

Callinan’s background

Mr Callinan (left) was a prominent lawyer in Australia before being appointed as a judge to the High Court in 1998. He served on the bench until his retirement in 2007.

According to the Australian Broadcasting Corporation, he has long standing ties to the Queensland National Party and is recognised as a political and legal conservative. At the time of his appointment, there were concerns that his political connections played a significant part in his elevation to the bench.

“When the Coalition Government appointed Ian Callinan to the High Court of Australia, they knew they were in for controversy. Six months down the track the legal profession is bitterly divided over whether Justice Callinan’s past behaviour warrants a parliamentary inquiry into his professional ethics.” (Four Corners documentary, ABC, 14 September 1998.)

Tim Fisher, Deputy Prime Minister, Australia 1996-1999

In March 2015,Radio New Zealand described Callinan as a ‘controversial figure across the Tasman’ with a ‘colourful past’ and said the perception about his politics was reinforced by a frank admission from Tim Fischer, the deputy prime minister of Australia at the time that“the Howard Government wanted to see a ‘Capital C Conservative’ appointed to the court.”

Callinan’s appointment to the High Court was immediately controversial. Shortly after being sworn in, he was asked to stand down from the Hindmarsh Island Bridge case (involving Aboriginal archaeological sites), because of his perceived bias towards the Government’s position in the case. Three months before his appointment, he’d written a legal opinion for a Senate Committee in which he stated the Government had the power to introduce racially discriminatory legislation if it chose to do so.

The situation was highly contentious and raised the possibility that for the first time a High Court judge might end up being disqualified by his colleagues. The matter was dropped when Callinan, realising the potential repercussions, eventually chose to disqualify himself.

Callinan’s integrity

A few months later, further concerns about Callinan’s integrity were raised when legal ‘advice’ he had given to a corporate client 12 years earlier became the subject of a controversial law suit. The case, White Industries v Flower & Hartwas the longest-running and most expensive commercial proceeding in Queensland’s legal history. It involved a $5 million debt owed to a construction company, White Industries, by a property developer represented by the legal firm, Flower & Hart. Callinan was contracted by Flower & Hart for legal advice and suggested a strategy that included ‘allegations of fraud in circumstances where there was no factual basis for making that allegation’. The judge, who ruled in favour of the construction company, said Mr Callinan had agreed and approved of the use of a fraud claim to frustrate and delay White’s recovery of the money the company was owed.

He said that based on Callinan’s advice…

“Flower & Hart breached the duty it owed to the Court to conduct proceedings before the Court with propriety, not to be a party to an abuse of process and not to obstruct or defeat the administration of justice.”

The scandal became the subject of a television documentary by the ABC Four Corners programme and led the Law Council of Australia to call for a parliamentary inquiry into Callinan’s professional ethics.

Callinan’s views on the fallibility of the justice system

In a speech in which he argued against capital punishment in 2005, Callinan said:

“The criminal justice system is fallible. Mistakes occur… It is not within our capability to avoid the possibility of error. In my experience, the phenomenon of human fallibility is irrefutable… ”

This is true, but this ‘possibility of error’ also applies to Mr Callinan and to his judgments. Callinan seems to be acutely aware of this possibility; he highlighted the issue in books he has written. His first novel The Lawyer and the Libertinepublished in 1996, traces the fortunes of two boys brought up in Sydney during the Depression. In the book, one of the boys becomes the Attorney General of Australia and, according to one reviewer, is portrayed as a character who “regards bias as an inescapable fact of life and treats objectivity as an illusion to be ignored.” The other boy becomes the Chief Justice of the High Court (Callinan was appointed to the High Court). The reviewer says this character also “acknowledges bias and prejudice as facts of life, but regards their existence as pressing reasons to insist on objectivity as the ideal.”

It is not clear which of these characters Callinan identifies with the most. Nevertheless, his speeches and writings suggest he believes that bias and a lack of objectivity in the justice system are par for the course.

In other words, the New Zealand Government is holding up as the gospel of truth a man who does not seem to believe the justice system is capable of neutrality or objectivity. Callinan confirmed his own fallibility in a dinner speech he gave in Melbourne in 2014 about his time as a judge on the High Court (where there were four other judges). He said:

“Cases that seemed clear to me one way were sometimes equally clear the other way to one or more of my colleagues.”

In other words, Callinan admits he doesn’t always get it right. As far as Joe Karam is concerned, Callinan certainly didn’t get much right about David Bain. Before the report was published, Karam engaged in lengthy correspondence with Amy Adamsabout the multiple mistakes and misrepresentations it contained.

Here’s Callinan’s full report. His conclusion was that David has been unable to prove his innocence – bearing in mind, Judge Ian Binnie said David couldn’t prove it because the police allowed the Bain family home to be burned down three weeks after the killings, destroying crucial evidence (including the bloody footprints) in the process.